(Reuters) – A full federal appeals court has agreed to review a three-judge panel’s July ruling reviving a lawsuit by a Georgia man claiming Bayer AG’s Roundup weedkiller caused his cancer.
The Atlanta-based 11th U.S. Circuit Court of Appeals said Monday that all of its active judges have agreed to a so-called en banc rehearing, in which all the judges will hear arguments in the case. The en banc argument has not yet been scheduled.
Bill Dodero, Bayer’s incoming U.S. general counsel, said in a statement that the decision was “one of the most important developments” in seven years of lawsuits over Roundup in courts across the country. The company, which maintains the product is safe, has repeatedly sought to create a conflict between federal appeals courts in order to get the litigation before the U.S. Supreme Court, in the hope of ending it nationwide and avoiding potentially billions of dollars in damages.
A lawyer for Georgia resident John Carson, the plaintiff in the case, did not immediately respond to a request for comment.
Carson said in his lawsuit that he was diagnosed with a type of cancer called malignant fibrous histiocytoma in 2016 after using Roundup for 30 years. Carson said the company had a duty under Georgia law to warn of cancer risk on the product’s label.
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As it has in other Roundup cases, Bayer argued that the lawsuit should be dismissed because any cancer warning would be inconsistent with the label approved by the U.S. Environmental Protection Agency. The label’s approval under federal law thus blocks any state law claims, Bayer said, under a doctrine known as federal preemption.
A trial judge agreed, but three-judge panel of the 11th Circuit in July reversed and revived the case, finding that Georgia’s product liability law did not impose requirements on Bayer beyond those in federal law and so was not preempted.
The 9th Circuit had rejected Bayer’s preemption argument in a similar California lawsuit in 2020, and Bayer has said it hopes the Carson case will create a circuit split, making it more likely that the Supreme Court would consider the issue.
The Supreme Court has so far rejected the company’s petitions to hear Roundup lawsuits.
The case is Carson v. Monsanto Co, 11th U.S. Circuit Court of Appeals, No. 21-10994.
For Carson: Ashleigh Madison of Southeast Law
For Bayer: Michael Imbroscio of Covington & Burling
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